All
parties in this case have consented to Chief Magistrate Judge
Paul M. Warner conducting all proceedings, including entry of
final judgment, with appeal to the United States Court of
Appeals for the Tenth Circuit.[1]See 28 U.S.C. §
636(c); Fed.R.Civ.P. 73. Before the court is Royal Mfg Co,
L.P.'s ("Plaintiff) motion to strike pleadings and
enter default judgment.[2]

RELEVANT
BACKGROUND

Defendant
Mont Ashworth ("Mr. Ashworth") is a named defendant
in this case and is, or was at the time of the agreement that
is the subject of the dispute in this case, the treasurer of
Defendant IXL Premium Lubricants, Inc. ("IXL"). In
its initial disclosures, Plaintiff listed Mr. Ashworth as a
potential witness.

Sometime
in early 2017, Plaintiff scheduled the deposition of Mr.
Ashworth to occur on March 29, 2017. Mr. Ashworth failed to
appear for his deposition on that date and gave no prior
notice to Plaintiff. Plaintiff then rescheduled Mr.
Ashworth's deposition to occur on May 18, 2017. At some
point after the deposition was rescheduled, Mr.
Ashworth's counsel notified Plaintiff's counsel that
he had not been in contact with Mr. Ashworth regarding his
appearance at the rescheduled deposition. Consequently,
Plaintiff cancelled Mr. Ashworth's rescheduled
deposition.

On May
18, 2017, Plaintiff filed a motion to compel the deposition
of Mr. Ashworth.[3] On June 30, 2017, the court issued an
order ("June 30 Order") requiring IXL and Mr.
Ashworth to provide Plaintiff with a mutually agreeable date
and time for Mr. Ashworth's deposition.[4] The court further
ordered that said deposition was required to take place
within thirty (30) days after the date of the June 30 Order.
IXL and Mr. Ashworth failed to make Mr. Ashworth available
for a deposition within the time frame ordered by the court.

On
September 19, 2017, Plaintiff filed a motion for order to
show cause seeking an order requiring IXL and Mr. Ashworth to
appear before the court to explain their failure to produce
Mr. Ashworth for a deposition as ordered by the
court.[5] In response to Plaintiff's motion, IXL
and Mr. Ashworth contended that (1) Mr. Ashworth
"confused the prior two deposition dates and so missed
them"; (2) IXL and Mr. Ashworth had been attempting to
set another date for Mont Ashworth's deposition,
"but he is retired and absent a great deal, "
"has no further contact with" the entities named as
defendants in this case, and those entities "have no
control over his coming and going"; (3) IXL and Mr.
Ashworth would "continue to seek a new deposition date
for [Mr] Ashworth"; (4) "[Mr] Ashworth has little
testimony to provide beyond acknowledging that he signed the
documents that have been made exhibits at prior
depositions"; and (5) "Plaintiff has not been
prejudiced in any significant way by [Mr] Ashworth's
absence."[6]

On
December 15, 2017, the court issued an order ("December
15 Order") granting in part and denying in part
Plaintiff's motion for an order to show
cause.[7] In the December 15 Order, the court
concluded that IXL and Mr. Ashworth had advanced entirely
frivolous arguments in opposition to Plaintiff's motion
for an order to show cause and that those arguments provided
no legitimate basis for IXL and Mr. Ashworth's failure to
produce Mr. Ashworth for a deposition as required by the June
30 Order. The court also concluded that IXL and Mr.
Ashworth's arguments did nothing more than demonstrate
their total disregard for the June 30 Order. Accordingly, the
court granted all of Plaintiff's requested relief, with
one exception. The court did not order IXL and Mr. Ashworth
to appear before the court to explain their failure to comply
with the June 30 Order. However, the court awarded Plaintiff
its reasonable expenses, including attorney fees, incurred in
connection with Mr. Ashworth's failure to appear at his
two scheduled depositions and with the motion for an order to
show cause. See Fed. R. Civ. P. 37(b)(2)(A)
("If a party . . . fails to obey an order to provide or
permit discovery, ... the court where the action is pending
may issue further just orders."); Fed.R.Civ.P.
37(b)(2)(C) (providing that in the event of a failure to obey
an order to provide or permit discovery, "the court must
order the disobedient party, the attorney advising that
party, or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances
make an award of expenses unjust."). In reaching the
determination that such an award was appropriate, the court
concluded that, for the reasons set forth above concerning
IXL and Mr. Ashworth's arguments, IXL and Mr.
Ashworth's failure to comply with the June 30 Order was
not substantially justified. See Fed. R. Civ. P.
37(b)(2)(C). The court further concluded that there were not
circumstances that would make such an award unjust. See
id.

Based
upon those conclusions, the court ordered Plaintiff to,
within fourteen (14) days after the December 15 Order, file
an affidavit or declaration detailing the reasonable
expenses, including attorney fees, that it incurred in
connection with Mr. Ashworth's failure to appear at his
two scheduled depositions and with the motion for an order to
show cause. The court further provided IXL and Mr. Ashworth
with an opportunity to, within fourteen (14) days after the
filing date of Plaintiff's affidavit or declaration, file
a response to raise any objections to the amount of the award
sought by Plaintiff. The court indicated that after receiving
those filings, it would make a determination of the amount of
the award to Plaintiff. The court also ordered IXL and Mr.
Ashworth to make Mr. Ashworth available for a deposition
within thirty (30) days after the date the December 15 Order.
Finally, the court notified IXL and Mr. Ashworth that their
failure to comply with the December 15 Order may subject them
to further sanctions, including, but not limited to, entry of
default judgment. See Fed.R. Civ. P.
37(b)(2)(A)(i)-(vii) (providing the "further just
orders" a court may issue in the event that a party
fails to obey a discovery order, including entry of default
judgment against the disobedient party).

Thereafter,
Plaintiff attempted to schedule the deposition of Mr.
Ashworth. Although IXL and Mr. Ashworth contend that they
notified Plaintiff that Mr. Ashworth was "generally
available for a deposition from late January through the end
of February, [8] it does not appear that IXL and Mr.
Ashworth have made Mr. Ashworth available for a deposition
within the time frame ordered by the court in the December 15
Order.

On
December 29, 2017, Plaintiff filed its affidavit of
reasonable expenses.[9] IXL and Mr. Ashworth did not file any
response within the time frame allowed by the court.
Accordingly, on January 24, 2018, the court issued an order
("January 24 Order") concluding that the amount of
the award sought by Plaintiff was reasonable and awarding
Plaintiff $5, 987.50 in reasonable expenses, including
attorney fees.[10] IXL and Mr. Ashworth were ordered to
make payment of that award to Plaintiff within fourteen (14)
days after the date of the January 24 Order and file proof of
payment with the court.

According
to Plaintiff, as of February 16, 2018, the filing date of its
motion to strike pleadings and enter default judgment, IXL
and Mr. Ashworth had not made payment of the award ordered by
the court. Furthermore, as of the date of this order, IXL and
Mr. Ashworth have not filed with the court any proof of
payment of the award.

LEGAL
STANDARDS

As
noted above, Rule 37(b)(2)(A) of the Federal Rules of Civil
Procedure provides that "[i]f a party . . . fails to
obey an order to provide or permit discovery, . . . the court
where the action is pending may issue further just
orders." Fed.R.Civ.P. 37(b)(2)(A). Rule 37(b)(2)(A) also
provides that the "further just orders" a court may
issue in the event of such a failure include "striking
pleadings in whole or in part" and "rendering a
default judgment against the disobedient party."
Fed.R.Civ.P. 37(b)(2)(A)(iii), (vi). Rule 37(b)(2)(C) further
provides that in the event of such a failure, "[i]nstead
of or in addition to" the further just orders outlined
in Rule 37(b)(2)(A), "the court must order the
disobedient party, the attorney advising that party, or both
to pay the reasonable expenses, including ...

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